Brown v. State, No. 53782

CourtUnited States State Supreme Court of Florida
Writing for the CourtSUNDBERG; ENGLAND; HATCHETT; HATCHETT
Citation376 So.2d 382
Docket NumberNo. 53782
Decision Date14 June 1979
PartiesEdward J. BROWN, Petitioner, v. STATE of Florida, Respondent.

Page 382

376 So.2d 382
Edward J. BROWN, Petitioner,
v.
STATE of Florida, Respondent.
No. 53782.
Supreme Court of Florida.
June 14, 1979.
Rehearing Denied Nov. 27, 1979.

Page 383

Tobias Simon and Theodore L. Tripp, Jr., Miami, for petitioner.

Jim Smith, Atty. Gen., and Calvin F. Fox, Asst. Atty. Gen., Miami, for respondent.

SUNDBERG, Justice.

By petition for writ of certiorari, petitioner seeks review of the decision of the District Court of Appeal, Third District, reported at 355 So.2d 138, which is alleged to be in conflict with Fullard v. State, 352 So.2d 1271 (Fla. 1st DCA 1977). The issue presented is whether a criminal defendant, in order to plead Nolo contendere and specifically reserve his right to appeal, must show that the legal issue reserved for appeal is dispositive of the case. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioner was charged by information with unlawful possession of marijuana. He pleaded not guilty and filed a pretrial motion to suppress his confession. Petitioner did not, however, file a motion to suppress the marijuana. Upon stipulation of the parties the trial court considered a series of pretrial discovery depositions taken by the defense as the sole testimony on the motion to suppress. The record does not indicate whether this deposition testimony represented the full extent of the State's case against petitioner.

The testimony revealed that the police seized marijuana from petitioner's motel room while he was absent. Upon his return to the room and after an unsuccessful attempt to flee, petitioner was arrested and given his Miranda warnings. The police also arrested the person who was in the motel room at the time of the seizure of the contraband. At the police station a Sergeant Minium questioned petitioner but did not readvise him of his Miranda rights. During this interrogation petitioner admitted ownership of the marijuana.

After the trial court denied his motion to suppress the confession, petitioner changed his plea of not guilty to a plea of Nolo contendere upon condition that he be allowed to appeal the denial of the motion to suppress. The trial court accepted his plea as so conditioned and placed him on two-year's probation. The District Court of Appeal, Third District, dismissed petitioner's appeal, reasoning that under State v. Ashby, 245 So.2d 225 (Fla.1971), a conditional Nolo plea is permissible only if the legal issue to be appealed is dispositive of the case. In Fullard, supra, the District Court of Appeal, First District, reached a contrary result, holding that an Ashby nolo plea need not be conditioned upon a dispositive legal issue.

Page 384

Petitioner asserts that the limitation placed upon an Ashby nolo plea by the decision here under review is contrary to the intent of Ashby, supra, and the decisions of other district courts. Respondent counters by arguing that the policies underlying the Ashby rule are in fact subverted by permitting a Nolo plea conditioned upon the right to appeal nondispositive issues. For the following reasons, we agree with respondent's contentions and hold that an Ashby nolo plea is permissible only when the legal issue to be determined on appeal is dispositive of the case. To the extent Fullard v. State, supra, holds to the contrary it is disapproved.

The practice of allowing an appeal after a plea of Nolo contendere is grounded upon the belief that "it expedites resolution of the controversy and narrows the issues to be resolved." 1 These purposes are poorly served and, indeed, thwarted when a defendant is permitted to appeal nondispositive pretrial rulings. Instead of expediting resolution of the controversy, the procedure prolongs litigation by sanctioning, in effect, an interlocutory appeal. Because of the nondispositive nature of the appeal, the defendant faces the prospect of a trial even if he prevails on appeal. The inevitable is not avoided but merely postponed, thus further burdening the already severely taxed resources of our courts.

The more logical and efficient procedure to follow in this situation is to proceed to trial and fully ventilate all of the issues. In this way the matter will reach the appellate court in a familiar posture and with a full record upon which to base an intelligent decision. 2

The vast majority of federal courts are in accord with the decision we reach today. United States v. Sepe, 486 F.2d 1044 (5th Cir. 1973); United States v. Matthews, 472 F.2d 1173 (4th Cir. 1973); United States v. Soltow, 444 F.2d 59 (10th Cir. 1971); United States v. Karger, 439 F.2d 1108 (1st Cir.), Cert. denied 403 U.S. 919, 91 S.Ct. 2230, 29 L.Ed.2d 696 (1971); Abram v. United States, 398 F.2d 350 (3d Cir. 1968); United States v. Moretti, 353 F.2d 672 (2d Cir. 1965), Vacated and remanded on...

To continue reading

Request your trial
164 practice notes
  • State v. Forshey, No. 18549
    • United States
    • Supreme Court of West Virginia
    • April 19, 1989
    ...75 L.Ed.2d 463 (1983); United States v. Thibadeau, 671 F.2d 75 (2d Cir.1982); Heuga v. State, 609 P.2d 547 (Alaska 1980); Brown v. State, 376 So.2d 382 (Fla.1979). This requirement assures that the procedure will be used for its intended purpose--to provide a mechanism to resolve complicate......
  • Hicks v. State, No. 1D17-1830
    • United States
    • Court of Appeal of Florida (US)
    • June 12, 2019
    ...trial even if he or she prevailed on appeal, which would prolong rather than expedite resolution of the case"); see also Brown v. State , 376 So. 2d 382, 384 (Fla. 1979) ("Because of the nondispositive nature of the appeal, the defendant faces the prospect of a trial even if he prevails on ......
  • Morales v. State, Nos. 80-248
    • United States
    • Florida District Court of Appeals
    • December 15, 1981
    ...and the authority to reach the issue preserved for review as the issue preserved is clearly dispositive of the case. Brown v. State, 376 So.2d 382 The Fourth Amendment to the United States Constitution, as made enforceable against the states through the due process clause of the Fourteenth ......
  • Finney v. State, No. 79-1936
    • United States
    • Court of Appeal of Florida (US)
    • October 5, 1982
    ...evidence of a stipulation between counsel, it would be appropriate to reach the merits. This decision is not contrary to Brown v. State, 376 So.2d 382 (Fla.1979) where the court expressed concern that any attempt to demonstrate that a confession was dispositive, would result in a mini-trial......
  • Request a trial to view additional results
164 cases
  • State v. Forshey, No. 18549
    • United States
    • Supreme Court of West Virginia
    • April 19, 1989
    ...75 L.Ed.2d 463 (1983); United States v. Thibadeau, 671 F.2d 75 (2d Cir.1982); Heuga v. State, 609 P.2d 547 (Alaska 1980); Brown v. State, 376 So.2d 382 (Fla.1979). This requirement assures that the procedure will be used for its intended purpose--to provide a mechanism to resolve complicate......
  • Hicks v. State, No. 1D17-1830
    • United States
    • Court of Appeal of Florida (US)
    • June 12, 2019
    ...trial even if he or she prevailed on appeal, which would prolong rather than expedite resolution of the case"); see also Brown v. State , 376 So. 2d 382, 384 (Fla. 1979) ("Because of the nondispositive nature of the appeal, the defendant faces the prospect of a trial even if he prevails on ......
  • Morales v. State, Nos. 80-248
    • United States
    • Florida District Court of Appeals
    • December 15, 1981
    ...and the authority to reach the issue preserved for review as the issue preserved is clearly dispositive of the case. Brown v. State, 376 So.2d 382 The Fourth Amendment to the United States Constitution, as made enforceable against the states through the due process clause of the Fourteenth ......
  • Finney v. State, No. 79-1936
    • United States
    • Court of Appeal of Florida (US)
    • October 5, 1982
    ...evidence of a stipulation between counsel, it would be appropriate to reach the merits. This decision is not contrary to Brown v. State, 376 So.2d 382 (Fla.1979) where the court expressed concern that any attempt to demonstrate that a confession was dispositive, would result in a mini-trial......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT